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WINNOWINGS IN AMERICAN HISTORY. 



VIRGINIA TRACTS. 

No. II. 



.no?ri!o!» 



WIMOWINGS IN AMERICAN HISTORY. 



VIRGINIA TRACTS. 
No. II. 



250 copies printed. 
No. ^/ 



The Controversy between 
Lieutenan t-G o v e r n o r 
Spotsvvood, and his Coun- 
cil and the House of Bur- 
gesses, on the appointment 
of Judges on Commissions 
of Oyer and Terminer. 
1718. 



EDITKD BY 

WORTHINGTON CHAUNCEY FORD. 



BROOKLYN, N. Y. : 

Historical Printing Ci.uu. 

1891. 






ij 







The address to the King, and the Or- 
ders of the House of Burgesses to its 
agent, are now printed for the first time 
from a MS. found among the Ludwell Pa- 
pers. The plea of WilUam Byrd is taken 
from the Calendar of Virginia State Pa- 
pers, I., 190. The Council's representa- 
tion is taken from the Spotswood Letters, 
II., 221. 

Among the instructions given by the 
English ministers to Lieutenant Governor 
Spotswood was one that enjoined the ap- 
pointing of courts of Oyer and Terminer 
at least once every half year. Such courts 
had only recently been provided for in the 
colony, as the first law on the subject had 
been passed in 1692 ;* and was intended 
to provide for the more speedy prosecu- 
tion of negroes and other slaves for capi- 
tal offences. By this act the Governor, 
upon information of the offence and of the 

* Hening's Statutes at Large, III., 102. 

(5) 



offender's imprisonment, was to issue a 
commission of oyer and terminer directed 
to such persons of the county in which the 
crime was committed as he shall think fit. 
The trial was then made without jury, and 
the criminal, if convicted, was to be pun- 
ished according to the English law. By a 
second act passed seven years later, the 
governor could issue like commissions, 
directed to the admiralty judges, and " to 
such other substantial persons as he shall 
think fit to nominate and appoint," to 
punish piracy.* In 1705 the law of 1692 
was re-enacted so far as the issue of com- 
missions was concerned, the intention of 
the statutes being to secure speedy justice 
without the extraordinary charges attend- 
ing the process of the other courts. 

When Spotswood undertook to carry 
out his instructions, he was met by the 
assertion of the Council that the matter 
was sufficiently provided for by the Act of 
1705, estabHshing the General Court, by 

* Henin^, III., 179. 



which criminals were appointed to be 
brought to tryal on the fourth day of the 
General Court, held twice a year.* Spots- 
wood was correct in his intention, as the 
authorities in England had raised objec- 
tions to some of the provisions of that act. 
To quiet these objections a law was passed 
in the October session (1710) expressly 
disclaiming that anything in the law of 
1705 should be "construed, deemed, or 
taken to derogate from, lessen, or abridge 
the roial power, prerogative, and authority 
of her Majest}', her heirs and successors, 
of granting commission or commissions of 
oier and terminer, or of constituting and 
erecting such other court or courts of rec- 
ord, as her Majesty, her heirs or succes- 
sors, by her or their commission or com- 
missions, instruction or instructions to her 
or their governor or commander in chief 
of this colony and dominion, for the time 
being, shall direct, order or appoint."! 

* Hening, III., 293; Spotswoud Letters, I., 8. 
\ Hening,\\\., A,^<); Calendar of the J'irgijtia 
State Papers, I., 143, 144. 



This act gave the governor all the author- 
ity he needed, and accordingly he ap- 
pointed the first court to be held at 
Williamsburg, the second Tuesday of De- 
cember, and proposed to recommend to 
the Assembly to make the same provision 
for defraying the charge of the juries and 
witnesses attending this court as was made 
for the trial of criminals at the General 
Court.* 

The utility of such tribunals became so 
evident, that the Council in 1 7 1 2 did not 
hesitate to express their unanimous opin- 
ion that they should be held, whether 
there was any criminal to be tried or not. 
Pohtical differences intervened and raised 
a more serious question as to the appoint- 
ment of the judges. In December, 1712, 
when a man was to be tried for his life, 
the governor, believing that he could not 
count upon more than four of the council 
to sit, joined with them the Speaker, and 
" two others of the most eminent members 

*SpofszL<Pod Letters, I., 24. 



of the House of Burgesses." The Coun- 
cil held that the judges should be taken 
only from their number, as was the case 
with the General Court ; and, regretting 
their excessive liberality, also determined 
that commissions of oyer and terminer 
should issue only where a criminal was to 
be tried.* 

The differences were determined for 
the time by mutual concessions. The 
Governor agreed in future to appoint only 
members of the Council, and the Council 
adopted the Governor's opinion as to 
holding the courts. Yet the Governor 
was not convinced ; and he wrote to 
his superiors : " I cannot give up my 
judgment withal upon this last point [ap- 
l)ointment of judges] unless I find your 
Lordships concur with these gentlemen in 
their sentiments, which are, that since the 
Gen'l Court has hitherto been the only 
stated Court of Judicature in this colony, 
which hath had cognizance of hfe and 

* Spots-wood Letters, II., 25. 



Member, the Council, who are constituted 
the Judges thereof, look upon that same 
jurisdiction to be confined to them, and 
cannot submit to share it with other per- 
sons ; that some Governors might make a 
very dangerous use of this precedent, and 
bring thereby men's Lives and libertys 
under less security than their Estates ; 
that the Gentlemen of England are never 
added to the Judges in Commissions of 
Oyer and Terminer, but in their Circuits ; 
and that it is done, because in those pro- 
gresses there is but one Judge to sit on 
the Pleas of the Crown ; and lastly, that 
such affairs should proceed in the usual 
method, except where unusual accidents 
shall require an extraordinary exertion of 
the royal Power. This, ray Lords, is 
faithfully the sum of their Arguments, and 
if it shall be judged that there is no need 
of a Governor's giving now and then an 
instance to undeceive people here, and 
manifest the Prerogative of the Crown, 
and particularly in this point to convince 



some that the General Court Law passed 
here in 1705 has not estabhshed the 
Council to be the only Judges of Life and 
Death that her Majesty may appoint ; or 
if after all, your Lordships shall determine 
that the Members of the Council, and no 
others, ought to be the Commissioners of 
those Courts of Oyer and Terminer, which 
her Majesty orders me to constitute, I 
shall then most willingly continue to ap- 
point them solely, according as I have 
already promised them, shall, for the 
future, be done, till I am otherwise com- 
manded."* 

In raising the question of prerogative, 
the Governor touched an extremely sensi- 
tive point of the administration, and one 
that was sure to respond on the side of 
the royal representative. Although Spots- 
wood had submitted his case in June, 
1 7 13, and sent over the Council's repre- 
sentation (printed post), it does not ap- 
pear to have been decided in England 

* Spotswood Letters, II., 26. 



till June, 1 716, when the full weight of 
authority was given to the governor's 
position. 

He was told that he had power to ap- 
point a particular court of Oyer and 
Terminer, and constitute the Judges 
thereof, unless it be otherwise directed by 
Act of Assembly. This opinion was fully 
supported by the law of 17 10, already 
cited. 

An opportunity to test his strength soon 
occurred, and to " remove that wrong no- 
tion, which has been carefully infused 
into the people here, that his Majesty has 
not the same power of constituting Judges 
here as in England, I thought it necessary 
to appoint five of the Council and four 
other of the principal Gentlemen of the 
Country to be the Judges, but some of the 
former resolving still to adhere to their 
former opinion that ye Council ought to 
be ye sole judges in all criminal matters, 
refused to sitt, tho' it might have been 
expected they would have acquiesced in 



13 

your Lordships determination of that 
matter, since they have little to plead for 
themselves, but what your Lordships have 
had already under consideration, and that 
his Majesty's Attorney General and all ye 
other eminent Lawyers here are clearly of 
opinion that there is not authority, either 
in the Laws of the Colony or in the 
Charter of King Charles the IL, that favors 
their pretensions. I should not have 
troubled your Lordships upon this head, 
(seeing the Council have made nore pre- 
sentation to me as they did before), but 
that it [has] becom.e a practice of late to 
hand Secret Remonstrances of the affairs 
of Government, v/ithout any [my ?] know- 
ledge to private Agents, to be of use for 
concealed Designs, and I am apprehensive 
some such may be made on this occasion, 
and, therefore, I was willing to give your 
Lordships some intimation of this Dispute 
that you may not be surprised into any 
alteration of what you have already de- 
clared to [be] your sentiments thereof, 



14 

nor made to believe that while I am con- 
tending for the legal Rights of the Crown 
I'm lessening the just privileges of the 
Council. For, whatever specious Argu- 
ments they may use, it is certain their 
pretensions are now as frivolous ; the Con- 
stitution of England, the laws of this Coun- 
try, and ye Constant practice of former 
Causes ( ?) , are entirely against them, and 
I hope your Lordships will give no Coun- 
tenance to any thing that* shall be urged 
in their behalf till I have an opportunity 
of setting forth what may be justly offered 
in support of his Majesty's prerogative, 
and of the power his Majesty has been 
pleased to grant to his Governor for the 
Nomination of such Judges, which is now 
called in question."* 

The question once opened, it was not 
long before Spotswood began to urge im- 
proper motives on the part of the Council, 
and explained their attitude by their desire 
to abuse the generosity of the King, and to 



^Spotsivood Letters, II., 259, 260. 



15 

share in the public revenue. Councillors 
were formerly willing to sit with common 
Justices of the Peace in commissions, and 
never raised a doubt on the legaHty or 
propriety. But when a salary of ^loo 
was attached to each court, they claimed 
the sole power of judicature, and advanced 
the pretension of being the sole judges of 
those courts on their birth. Why, asked 
Spotswood, would not a repeal of this 
grant be the simplest solution of the prob- 
lem?* 

The friction between the Governor and 
the Council increased, and as the Bur- 
gesses supported the Council, the latter 
body came in for a share of his suspicion 
and displeasure. In 1710, when the path 
of the Governor was by no means an easy 
one to tread, he had sharply criticised the 
Burgesses, from whom he had at first 
received approval of his conduct : " That 
unhappy humor of the Country in choosing 
for their Representatives, persons of mean 

* Spotswood Letters, II., 270 ; March, 1718. 



i6 

understandings." " I cannot yet see what 
will be the temper of this Assembly, the 
inclinations of the country being rendered 
more mysterious by a new and unaccount- 
able humor which had obtained in several 
counties of excluding the Gentlemen from 
being Burgesses, and choosing only per- 
sons of mean figure and character." 
*' Such people being rarely possessed with 
a publick spirit, and generally bringing 
along with them the same pernicious tem- 
per in their public transactions that gov- 
erns them in their private capacitys."* 

It v/as, however, against the Assembly 
that began its first session in April, 1718, 
that he levelled his severest criticisms. 
The same leaven or humor was at work, 
and during the elections every attempt 
was made to inspire the people with a 
dread of the enormous expenditures to be 
made if they supported the Governor. 



*Spotswood Papers, I., 19, 132. To the Board 
of Trade, 24 October, 1710, and 28 December, 
1711. 



17 

They would be ruined by the executive's 
extiavagance, and no one should receive 
their suffrage who had an affection for the 
Governor. " To encrease the disaffection 
toward the friends of y^ Government, 
great care was also taken to possess the 
people with a partial account of the late 
Dispute about the Courts of Oyer and 
Terminer, to represent to them that great 
Infraction of their Charter, and the dan- 
gerous Consequences of allowing the Gov- 
ernor a power of nominating Judges to 
try men for their Lives ; a Paper was 
drawn up in the nature of a Grievance 
against these Courts, and sent all over the 
Country to be signed by the People, and 
in order to make this go down the better, 
some other popular Propositions were 
coupled with it, such as the ascertaining 
ofificers' fees by Law — this being what 
every one desired to see regulated. But 
this Train would not take, the people 
generally refusing to concern themselves 
therein, and choosing rather to drop the 



i8 



Article of y! officers' fees than sign to that 
which they knew to be only calculated to 
enlarge the power of a party in the Coun- 
cil. So that the Grievance of the Oyer 
and Terminer Judges came only recom- 
mended from two Countys, and was 
signed in one but by i8 and in the other 
by no more than ii, and all very obscure 
fellows." 

The result of these election manoeuvres 
was to return a House in which a majority 
was opposed to the Governor, and one 
that soon began to show its opposition. 
The '•' first remarkable step the Assembly 
proceeded in," was to prepare the address 
to the King that is printed in the following 
pages. "To solicit this address, they 
thought fitt to have a particular agent, and 
to this purpose prepared a Bill whereby 
the Burgesses were of themselves impow- 
ered to name, (barely by a Resolve of 
their House,) any person to be their 
agent ; by the like Resolve, change him 
and put in another, and by the same 



19 

power to pay such agents what sums they 
thought fitt, without any concurrence of 
the Governor or Council. This power, 
tho' strenuously contended for by such of 
the Council who sett the Burgesses to 
work, was, nevertheless, so ill relished by 
the soberer men of the same party, and so 
exclaimed against by the other Gentlemen 
of the Council who are not in their Inter- 
est, that it was at last thrown out in the 
Council, and soon after a Vote passed in 
ye Burgesses House appointing Mr. Byrd 
their agent, and assuring him of a suitable 
gratification for his trouble, and a select 
Committee appointed to prepare Instruc- 
tions for him, a copy of which as they 
passed the House, I here send. By which 
your Lordships will perceive what mighty 
occasion they have for throwing away the 
Country's money upon such an agent, 
when they have so little Business for him 
to regulate, and when they were told that 
the transmitting addresses to the sover- 
aign by any other manner than through 



the hands of the Governor had been dis- 
approved of by the late Queen, upon a 
[report?] from the Lordships Board in a 
case wherein the very Gentleman was im- 
ployed as [agent] in 1702. But the truth 
is, the main aim of constituting an agent 
was disappointed by the Miscarriages of 
their Bill, which would have enabled that 
party, (if they were so weak as to imagine 
I would pass it,) to dispose of every farth- 
ing of the publick Money at their pleasure 
and to their Friends, for by the same 
power of making and gratifying agents by 
the Resolve of their House, they might, 
from time to time, have nominated one 
another, and given what sums they thought 
fitt for no semces at all. That this is no 
unreasonable conjecture, will appear from 
another step taken after their Agents' Bill 
miscarried. A Bill was prepared by the 
Burgesses and sent up to ye council and 
passed there, whereby ^^^4000 of the pub- 
lick money was ordered to be put into the 
hands of Mr. Arch'd Blair, under pretence 



of intrusting him to put it out at Interest 
for 4 per cent, per annum, of which he 
was to be allowed one-half for his trouble ; 
but with this express Condition, that if he 
did not lend it, he should pay no interest 
at all. This Gentleman, now a member 
of the House of Burgesses, is brother to 
Mr. Com'ry Blair,* one of the Council, 
and they are in Partnership with Colo. 
Ludwelljt and are concerned in one of the 
most considerable Trading Stores in this 
country. And as this money, being once 
placed in his hands by Act of Assembly, 
could not have been called out of his 
hands but by the same authority, and as 
there is in the Council a great majority of 
the Relations of those Genderaen, should 
they have refused their Concurrence to the 
recalling that Money, it must remain in 
his hands without any interest to the 
country as long as they pleased. And for 

* James Blair. 
t Philip Ludvvell. 



this Reason I have resolved to reject that 
Bill.* 

All this trouble Spotswood laid at the 
door of the eight councillors who had 
signed a remonstrance against the Courts 
of Oyer and Terminer.! "A Governor 
cannot contrive a surer way of gaining 
their disfavor than by strictly pursuing his 
Duty and faithfully discharging his Trust. 
Your Lordships' Determination about the 
Disputes of the Courts of Oyer and 
Terminer remains deeply rooted in their 
minds, and they have pubUckly declared 
at the Council •Board that though they 
could not help acquiescing therein, they 
were not convinced of the Legality of that 
Decision," And he urges that the mem- 
bers of the Council be changed, that his 
Majesty's authority may be settled upon a 
solid Basis. Political differences led to 
social separation, and the recalcitrant 

*Spolswood Leitei-s, II., 277, 278. To Board of 
Trade, 24 June, 171 8. 
t Only seven councillors signed. 



23 

Councillors celebrated by themselves, not 
attending the entertainments given by the 
Lieutenant-Governor, nor inviting him to 
their own. Fortunately this strained situa- 
tion was relieved by the recall of Spots- 
wood ; but it is doubtful if Virginia ever 
had a Governor who had the interests of 
the Colony more at heart. The same 
difficulty hampered him as weighed upon 
the endeavors of every loyal representa- 
tive who wished to advance the welfare of 
his charge. It was impossible to reconcile 
the demands of prerogative with the ex- 
panding energies of a State essentially 
democratic. 

The composition and functions of the 
Council were sufficient to invite the op- 
position of Governor and even of people, 
for they were somewhat anomalous. The 
members were appointed in England upon 
the nomination and recommendation of 
the Governor. Naturally he would seek 
to give support to his master's authority 
by selecting the ablest men ; but his ov/n 



24 

power and influence were not to be 
neglected. E) nominating sucli as were 
rich, politically influential, and of wide and 
powerful connections, he could not only 
gain their favor and voice, but add to their 
importance as well. The position of 
councillor served as well to conciliate an 
enemy as to strengthen a friend, and it 
was not infrequently used as a bribe, and 
frequently as a favor. Considering the 
temptation thus offered, it is as remarkable 
as it is creditable, to find so many able, 
honest and patriotic councillors, and so 
few of the self seeking and unscrupulous 
element. This Council gave advice to the 
governor on public measures, and in this 
function it acted as a branch of the execu- 
tive. Members of the Council were col- 
lectors, naval officers, secretary of the col- 
ony, auditors and farmers of the revenue. 
The Council was also the Upper House of 
the Assembly, taking its share in legislation, 
and quite as important a share as the Bur- 
gesses exercised. Its members were the 



25 

Judges of the General Court, the highest 
court in the colony. Was not this an ex- 
tremely centrahzed power? As legisla- 
tors, they framed and passed measures ; 
as judges, they interpreted them ; and as 
councillors they assisted in their execu- 
tion. Their social position gave them a 
great influence with the people and the 
Burgesses, and their official standing mag- 
nified this influence. Was it strange that a 
Governor should have a wholesome fear of 
such a body, if he were so unfortunate as 
to invite its opposition ? Spotswood as- 
serted that his immediate predecessors 
had been recalled through the intrigues of 
the Council ; and to save his own head, he 
sought to oust the Council, that another, 
friendly to himself, might be appointed in 
its stead. 

Some of the members of the Governor's 
Council drew very refined distinctions in 
defence of their apparent inconsistency, 
holding that they might as councillors re- 
ject or deem unfit a measure which in the 



26 

capacity of legislator they might support. 
And this, too, when their right to vote in 
the Upper House rested entirely upon 
their being sworn in as Councillors. In 
the Council they were bound by oath to 
assist the Governor, and to defend all 
jurisdictions and authorities appertaining 
to his Majesty ; in the Assembly they 
would naturally be on the side of the peo- 
ple, and regard only what was for the 
good of the colony. But sometimes the 
two positions would differ radically, and 
the Governor with chagrin saw the meas- 
ures which he had prepared with the as- 
sistance and advice of his Council op- 
posed and rejected by this same Council 
when sitting in assembly. More than that, 
some held that, as councillors, they were 
not expected to express an opinion on 
the legality of an act, for the same ques- 
tion might come before them as judges, 
and it would be awkward to have pre- 
viously given their decision. If the Gov- 
ernor was to receive no assistance from 



27 

the Council, wrote Spotswood, " I must 
confess I don't see of what use they are 
to the service of the Crown, since, in the 
passing of Laws they are not bound to 
consider his Majesty's interest nor in the 
execution of 'em to give their orders, and 
that on all unpopular occasions, a governor 
may not expect the assistance of his 
Council, but he may assuredly depend on 
all the blame." 

It must be admitted that in the con- 
troversy over the Oyer and Terminer 
commissions, either side had a fair argu- 
ment to support its claims. Spotswood 
was too greatly impressed by a fear of an 
oligarchy, and saw with distrust the ex- 
tensive interest centered in the hands of a 
few famihes. He was bound also to pro- 
tect the rights of the Crown, and espec- 
ially to guard that very elastic and sensi- 
tive attribute of royalty — prerogative. In 
performing what he regarded his duty he 
naturally found it difficult to maintain a 
consistent policy. To break down the in- 



fluence of the aristocracy, he needed 
democratic instruments ; and to defend 
prerogative, he must be on the side of 
absolute power, controlled as little as pos- 
sible by popular measures. He ahenated 
his Council, and he antagonized the Bur- 
gesses ; yet his policy was, on the whole, 
in favor of the people. But a distrust or 
jealously prevented him from carrying out 
his plans. The appointment of the Judges 
was but one point of antagonism. He 
was denied the privilege of appointing 
the clerks of the County Courts, on the 
ground that as these clerks were frequently 
elected Burgesses, the influence of the 
Governor in that House might become too 
strong, for these would hold their clerk- 
ships at his pleasure. The alternative 
scheme, whereby these clerks would hold 
their office at the hands of the Justices, 
offered quite as serious an objection, as 
these Justices were the members of the 
Governor's Council, and constituted the 
Upper House of Assembly. It was merely 
a choice of masters. 



29 

On the other hand, there was danger 
that the commissions to hold such courts, 
coupled with a power of nominating the 
Judges, might be so employed as to be- 
come an engine of tyranny. The mur- 
ders, committed under the form of law, 
but none the less murders, perpetrated 
after Bacon's rebellion in Virginia, and 
after Leisler's administration in New York, 
were still fresh in the minds of the people, 
and furnished terrible examples of the 
abuse of power, of the travesty of justice, 
in the hands of an unscrupulous execu- 
tive. 

Byrd went over to England about 1716, 
where he pleaded the cause of Philip Lud- 
well in his controversy with Governor 
Spotswood. He was then Receiver Gen- 
eral of his Majesty's revenue in Virginia, 
and it was in part official questions that 
led to his journey, which from one cause 
and another was so prolonged, that Byrd 
must have suspected Spotswood would 
seek to oust him from the Council. In 



30 

September, 1718, Spotswood did write, 
saying : " Mr. Byrd, one of the Council 
here, having been gone from hence three 
years and a half, and seeming, by his 
Letters and the new Employm't he has got 
into of being constituted Agent for the 
House of Bing's, to incline to a much 
longer continuance in England I hope Y'r 
Lo'ps will think fitt to move his Maj'ty to 
appoint another Counsellor in his room "* 
— and he recommended Mr. Cole Digges. 
Byrd soon heard of the attempted change, 
but understood that Peter Beverly, for 
several years Speaker of the Burgesses 
and County Treasurer, was the gentleman 
nominated as his successor. And he 
pleaded his cause so well before the Lords 
Commissioners of Trade, that he obtained 
an order of Council restoring him to the 
Council and his former rank therein.! 
Armed with this he sailed at an early 

* Spo/swood Letters, II., 304. 

t Calendar of the Virginia State Papers, I., 195. 



31 

day for Virginia, and took his place in 
the Council. 

WORTHINGTON ChAUNCEY FoRD. 

Brooklyn, N. V., April, i8gi. 



N. 



Tlie Councils Representation to the 
Governor touching Commissions of 
Oyer and Terminer. Received May 
ye I St, 1 71 3. 

May it please your Honor : 

As the constant civil itys your Honor 
has on all occasions exprest to the 
Council raised in us a suitable degree 
of gratitude, so the Experience we 
have of y^our Justice and Moderation 
makes us hope you will not be dis- 
pleased with this, our Just and neces- 
sary Representation. It was not with- 
out some uneasiness to us that were 
present to find in the Last Commis- 
sion of 0\'er and Terminer some other 
persons joyned with the Council. But 
in r-egard no criminal was then to be 
tryed, and because we were unwilling 
to show a publique disapprobation of 
(33) 



34 

what you had then been pleased to 
determine, we thought it most respect- 
ful to your Honor not to absent our- 
selves. However, we must now' beg 
leave in a more decent, and, we hope, 
in a more agreeable manner, to make 
our Exceptions to such Commission, 
and we hope you will not think it al- 
together without reason. When your 
honor was pleased to cause her Ma- 
jestye's Instructions to be read in 
Council relating to this matter, and 
after some debates had arisen about it, 
you were pleased to declare, (if those 
that were present remember rightly,) 
that you had no intention to appoint 
any other persons but the Council in 
that Commission; and if it should be 
otherwise, we beseech your Honor to 
reflect how much the General Court 
will be divested of its Jurisdiction, 
which is not only founded on the late 
Law, but also upon the constant usage 



35 

of this Dominion, no Instance being 
upon Record that any other stated 
Court of Judicature hath had cogni- 
zance of Life and member but the 
General Court only, and, with humble 
submission, there is great reason that 
it should be so ; for it would be hard 
that men's lives should be try'd by 
more Inferior Judges than their For- 
tunes, of which the last Resort in this 
Country is in the General Court. Tho' 
we have the most entire confidence in 
your Honor's Justice, and do firmly 
believe that in all things you will act 
according to the nicest Rules of In- 
tegrity and honor, yet in times to 
come it may be our misfortune, in 
your stead, to have a Governor who 
may make a very dangerous use of 
this Precedent. In such a Case we 
submit it to your Honor's penetration 
how much less security men's Lives 
and Libertys will be under than their 



36 

Estates, whenever it shall please God, 
for the punishment of this Country, to 
put it under the direction of a pas- 
sionate and resenting Governor. It is 
possible some may object that in Eng- 
land other Gentlemen are frequently 
added to the Commissions in Oyer 
and Terminer in their Circuits thro' 
the severall Countys, and also that in 
this Country some Commissions of 
this kind have been issued for Tryal of 
the Pirates and Indians in Extraordi- 
nary cases. To both these objections 
we beg leave to answer as follows: 

We own the Judges in England do 
carry with them in their Circuits Com- 
missions of Oyer and Terminer, where- 
in some Gentlemen of the respective 
Countys are named Associates with 
them. But this is purely for the ease 
of the Country, that Prisoners may be 
tryed without the Trouble of sending 
them up to the King's Bench. In the 



37 

Circuits there is but one Judge to sit 
on the Pleas of the Crown, and there- 
fore it may be thought necessary to 
join some other Persons in Commis- 
sion with him. But there is no In- 
stance of such an addition to the 
Judges when they set upon Life and 
Death in the King's Bench. 

Those Commissions which have is- 
sued in Virginia were sent out for the 
Tryal of very uncommon and enor- 
mous Crimes, but Ave humbly presume 
that such Extraordinary Courts can't, 
with much reason, be compared to a 
settled Court that hath its constant 
Returns twice every year, that holds 
its Sessions in the Metropolis of the 
Colony and in the very seat of the 
General Court, and hath cognizance 
of all breaches of the Peace, as well as 
of Pleas that concern life and member. 

Since it hath been insinuated to 
your honor that the Council, in advis- 



38 

ing the Continuance of this Court, had 
too much regard for the allowance for 
that purpose, we humbly beg leave to 
repeat the same Explanation of our 
meaning, that some of us made use of 
at the time it was debated, to-wit, That 
if we were obliged to leave our affairs 
at home and come to attend this Court, 
we had a fair claime to the Salary; 
but if your Honor would please to de- 
spatch a timely notice to us that no 
Criminals are to be tryed, that then, 
being put to no trouble, we should 
-not expect any pay. Upon the whole 
matter, we entreat your Honor to ob- 
serve, that when we were appointed 
members of the Council, we found 
this Jurisdiction confined only to the 
Judges of the General Court, and we 
should be unwilling that our success- 
ors should reproach us with having 
willingly departed from it; however 
we don't presume to measure the pre- 



39 

rogative of the Crown in such mat- 
ters, but humbly hope that her Ma- 
jesty will be graciously pleased to 
suffer such affairs to proceed in the 
usual Method, except where unusual 
accidents shall require an extraordi- 
nary Exertion of her royal power. 
However, if your honor shall see 
cause to be of a different opinion, and 
shall still be pleased in these Courts 
to joyn other persons with the Coun- 
cil, we humbly beg you will have the 
goodness to dispence with our atten- 
dance on such occasions for the future, 
and shall think ourselves very unfor- 
tunate in having Sentiments in this only 
business opposite to your Honor's, be- 
ing with all the duty and respect in the 
world, Your Honor's most faithfull 
and Most humble servants, 

Jno. Custis, Robert Carter, 
John Lew^is, Phill. Ludwell, 
W. Byrd, Hen. Duke, 

John Smith. 



TO THE KINGS MOST EXCEL- 
LENT MAJESTY. 

The Humble Address of the House 

OF Burgesses of Virginia. 
Alost Gracious Sovereign : 

We your Majestys niost dutifull 
and Loyall subjects the Burgesses of 
this your Ancient Colony and Domin- 
ion of Virginia now Assembled do 
heartily embrace this first opportunity 
humbly to congratulate [}'Our] Sacred 
Majesty on the Success of your Arms 
against those Dangerous Re[bels] who 
blinded with party fury made such 
desperate Efforts, for the Subvertion 
of your Religion and Libertys and 
Likewise to return our unfeigned 
thanks for )-our great care of the 
Trade of our Mother Country, of 
which we (tho' very remote) feell the 
(41) 



42 

happy Influences, and do Firmly be- 
lieve the present flourishing condition 
of this Country is next to the Divine 
goodness owing to the Wisdom of 
your Majestys Councells and glorious 
Administration. 

Your great goodness displayed in 
the tender regard you shew for all 
your Subjects, gives us boldness at 
this time to approach your sacred 
person and most humbly to represent, 
That the Honblf Alexander Spotswood 
your Majestys Lieutenant Governor 
pursuant to your Royall Comands 
hath laid before this house your order 
in Council bearing date at Hampton 
Court the 31 of July 17 17, and also 
your Royall Instruction dated the 27 
of September last upon consideration 
of which we are humbly of opinion 
That by the said Instruction your 
Majestys Subjects may be depriv'd of 
the best means of raising a revenue 



43 

for the Support of this your great and 
most Ancient Colony, let the Emer- 
gency be never so great, till your roy- 
all pleasure is known therein, "Which 
through our Naturall Scituation we 
conceive may prove of dangerous Con- 
sequence to the Future Safety of all 
your good [subjjects residing here — . 

Wherefore we most Humbly Im- 
plore your Majesty that you will be 
graciously pleased to allow us the 
Liberty of making Laws, for the good 
and support of this Colony as formerly 
it being often needfull that Laws 
should take place imediately, and as 
the Dependance we have on Trade 
will always make us cautious of Lay- 
ing unnecessary burthens upon it, so 
the Negative with which your Govern- 
our is vested may alwayes be an • Ef- 
fectual! Barr thereto — . 

We further begg leave to represent 
to your Majesty that the Judges of 



44 

your General Courts have from the 
first Settlement of this Colony had 
Congnizance of all Criminal cases, 
which Jurisdiction was granted to 
them by the Letters Pattents of your 
Majestys Royall predecessors and con- 
firmed to them by Act of Assembly, 
And whereas her late Majesty Queen 
Anne was pleased by her Royall In- 
struction to appoint two Courts of 
Oyer and Terminer to be held in this 
Colony every Year with the gracious 
view that all persons Accused of any 
Crime might be brought to a speedy 
Tryall, The Hon^f the Lieu*. Gov- 
ernor pursuant to the said Instruction 
is Impowered to appoint in the said 
Courts Avhat Judges he pleases exclus- 
ive of the constant Judges above men- 
tioned, Nor doth he hold himself 
obliged so much as to take the advice 
of his Council in the Nomination of 
"the said Judges whereby we appre- 



45 

hend the Governor may have the Lives 
and Estates of your Majestys good 
Subjects of this Colony very much in 
his power and will be able to defeat 
the Jurisdiction of your Majestys said 
Generall Court whenever he shall 
think fitt— 

Therefore we most Earnestly pray 
that your Majesty out of your great 
goodness will direct by your royall 
Instruction to your Governor that the 
Judges of your Generall Court (who 
being appointed by your Majesty out 
of the ablest and Discreetest of your 
Subjects in this Colony and holding 
their places during your Royall pleas- 
ure, have alwayes with great Honour 
and Justice and to the General Satis- 
faction of your people discharged that 
great Trust) may be declared the only 
Justices of the said Courts of Oyer 
and Terminer, or that your Majesty 
will be pleased to restrain this dan- 



46 

gerous power, in such other manner 
as you in your great Wisdom shall 
think most proper. 

To you Great Sir we fly for Succour 
and Support, our Safety is bound up 
in yours. Whilst you sit secure on the 
Throne of your Ancestors [the op]- 
pressed can never want a powerfull 
and ready Defender and therefore for 
our own and Countrys sake, we must 
never cease to Implore the divine pro- 
tection over you, That the almighty 
would Effectually give you the hearts 
of all your Subjects, and defeat the 
Designes of your Knemys and con- 
tinew the Crown in your Truly protes- 
tant Family to all Posterity. 



Mr. Corbin * reported that a Dupli- 
cate of the Address to the King had 

*Col. Gawin Corbin, of King and Queen 

county. 



47 

been examined and that the same was 
fairly Transcribed. 

Ordered 
. That the DupHcate of the said Ad- 
dress be signed by the Speaker. * 

Resolved 

That it is of absolute Necessity that 
an Agent be appointed to Solicit the 
Affairs of this Colony in Great Brittain 
and particularly to present the Ad- 
dress of this House to his Majesty. 

Resolved 

That VVill"^ Byrd Esq"", be and is 
hereby appointed Agent for this Col- 
ony and that he be desired by the 
vSpeaker to take upon him to Execute 
the said office pursuant to the Re- 
solves of this House, 

Resolved 

That the said Agent shall be al- 
lowed out of the Publick Treasury of 

* Daniel McCarty, of Westmoreland. 



48 

this Colony full Satisfaction for all his 
Disbursemtf and Trouble in Negotiat- 
ing the Address to his Majesty and 
other Affairs of this Colony. 

Ordered 

That the Clark of this House pre- 
pare two Copys of the Journalls of this 
Session so soon as may be conveni- 
ently done and Deliver the same to 
the Speaker. 

Ordered 

That Mr Corbin, M^ Harrison,* 
M\ Grymes,t*Mr Blair.J M^ Cono- 
way and M'; Ethridge prepare Instruc- 
tions to the said Agent and report the 
same to the House and that M'; Cary 
attend them as Clerk. 

Resolved 

That tis the desire of this House 

* Benjamin, the son of Benjamin Harrison, of 
Surry, and fatlier of the Signer. 
Ijohn Grymes. 

X Archibald Blair. 



49 

that M\ Speaker Transmit to the said 
Agent the two Copys of the Journalls 
aforesaid, the Duplicates of the Ad- 
dress to the King, together with such 
Instructions as shall be agreed to by 
this house. 

Endorsed: B^ Address to y^ K. 
and some orders, May, 1718, about 
theyre Agent. 



Remonstrance of William Byrd to the 

Lords Commissioners of Trade and 

Plantations. 
My Lords, 

The great diligence which your 
Lord'ps employ to rectify whatever 
you find amiss in the Plantations, en- 
courages me to lay before you an un- 
happy difference betwixt the Governor 
and the Council of Virginia, on occas- 
ion of his haveing joined several Per- 
sons with the Council in a Commis- 
sion of Oyer & Terminer, which I 
humbly conceive he could not regu- 
larly do, for the following Reasons: — 

I. The laws of that Colony, and 
particularly the 24th in the Printed 
Book, have most expressly limited, 
the Tryals of life and Limb to the 
General Court, and 'til laws shall be 
(51)- 



52 

repeal'd either by subsequent acts, or 
by His Majesty's Proclamation, I 
humbly conceive they are binding 
against all Governors whatever. 

2. King Charles the 2nd by His 
Roial Charter, bearing date the loth 
day of October 1676, was graciously 
pleas'd to grant, amongst other Privi- 
ledges to that Colony, that the Gov- 
ernour and Council for the time being 
should have full power and Authority 
to hear and determine (the very Eng- 
lish of Oyer and Terminer) all Trea- 
sons, Murthers, Felonys, &c., to be 
Committed within that Government. 
Now if they were to hear or determine 
all Pleas of the Crown, there can be 
no room for the Lieutenant-Govern- 
our to Constitute any other Judges of 
Oyer and Terminer for that purpose. 

3. All Criminal Cases, have by the 
constant usage of that Colony ever 
since its first Settlement, been heard 



53 

and determined by the Governour and 
Council for the time being. A cus 
tome therefore establisht by so long 
practice, and to which no manner of 
Inconvenience has ever been objected, 
ought not in reason or justice to be 
overturned, to gratify the humour, or 
perhaps the passions of any Gov- 
ernour. 

4. The Custome Confineing all 
Tryals in Criminal Cases to the Gov- 
ernour and Council, hath been founded 
on reason and Justice, because as no 
body must doubt of the Governours 
being well qualifyed, so likewise the 
Council is by His Majesty's express 
Instruction, to be appointed out of the 
Gentlemen of the greatest abilitys and 
best Estates in the Country, who are 
certainly most capable, and most 
likely to do impartial justice betwixt 
His Majesty, and all His Subjects. 
Besides the Council are always ap- 



54 

pointed by the King himself, whereas 
the persons join'd to them in these 
Commissions of Oyer and Terminer, 
are only nam'd by the Lieut. Gover- 
nour, without the advice of any body, 
for a particular time and (it may easily 
happen) for a particular purpose. 

5. To the foregoing Reasons, may 
be added the very fatal inconvenience 
that may follow upon the putting it 
into the Sole power of a Governour, to 
try any person by what Judges he may 
think most proper: who ever has had 
the fortune to live in the Plantations, 
has abundant reason to know, that 
Governours are not in the least exempt 
from humane frailtys. Such as a pas- 
sionate love for money, Resentment 
against such as presume to oppose 
their designes, partiality to their 
Creatures and Favorites, and many 
other Passions, to which men in power 
are more Subject than other people. 



55 

Now supposeing this to be true, I 
most humbly submit it to your Lord- 
s'ps, whether a Governour will not 
have it too much in his power, either 
to condemn the Innocent, or acquit 
the guilty, if he have the sole author- 
ity of appointing his Judges: or 
whether it be reasonable, that a Gov- 
ernour, who by a most express In- 
struction, can't appoint so much as a 
Justice of the peace, to decide the 
smallest property, without the advice 
of the Council, Should yet take upon 
him, by his own absolute will and 
pleasure, without any advice in the 
world, to appoint Judges, who without 
appeal are to determine not only con- 
cerning the Lives and Libertys, but 
also concerning the whole Estates of 
all those unhappy persons who shall 
be brought before them. 

6. Another great Inconvenience is 
the bad Understanding, this Innova- 



56 

tion must needs create betwixt the 
Governour and Council for his en- 
deavoring to take from them a Juris- 
diction which they have held from the 
first Settlement of that Colony, not to 
mention the unhappy Disquiet it must 
needs beget in the minds of His 
Majestys subjects there, when they 
find their lives and fortunes left so 
entirely at the mercy of this Lieut.- 
Governor, and of all the Governours 
that may hereafter be appointed to 
succeed him. Tis possible, my Lords, 
that 2 objections may be rais'd to jus- 
tify this extraordinary proceeding of 
the Lieut.-Governour, which I beg 
leave to lay before your Lord'ps, and 
to answer in the following manner: — 
Obj. 1st. — That the Governour of 
Virginia is by His Majesty's Commis- 
sion, authorized to appoint Courts of 
Oyer and Terminer for the Tryal of 
Criminals. 



57 

Ans. The Council of Virginia are 
very far from presumeing to dispute 
His Majesty's Prerogative of erecting 
what Courts he pleases in His Colonys 
and Plantations. They only intreat 
your Lord'ps to observe, that altho' 
the Governour's Commission doth 
authorize him to appoint Courts of 
Oyer and Terminer, yet it doth not 
empower him to Constitute such 
Judges in those Courts, as are ex- 
cluded by the Roil Charter, as well 
as by the laws and constant practice 
of that Colony : it is a known maxim 
in law, that all grants and Commis- 
sions issued by the King must ever 
be constant in such a manner, as to 
make them consist with law and jus- 
tice. Such a construction as this, the 
Commission to the Governor of Vir- 
ginia may naturally receive, for the 
Governour may doubtless appoint 
Courts of Oyer and Terminer and 



58 

name the Judges of those Courts out 
of the Council, (which ought to con- 
sist of twelve of the best qualified 
Gentlemen of that Country,) from 
amongst whom he may appoint a 
competent number, without trans- 
gressing any law, or incurring any 
inconvenience whatever, by which 
means, both His Majesty's Commis- 
sion on the one hand, and the Royal 
Charter, as well as the laws of the 
Colony, on the other, will remain in 
their full force and virtue. 

Obj. 2nd. — Just after Bacon's Re- 
bellion, there was a Commission of 
Oyer and Terminer, wherein Sir John 
Berry, Colo. Jeffreys, and Colo. Mor- 
rison were join'd to the Council, and 
since that there have been other Com- 
missions issued, wherein the respective 
Governours have nam'd other persons 
for Judges, besides the Council, for 
the Tryal of Pyrates and Indians, 



59 

Ans. As to the first of these Com- 
missions, it was issued just after a 
RebelHon wherein several! of the 
Council were suspected to be involved, 
which I thank God, is now very far 
from being the case, all the Councill 
being as firm to the Interest of His 
Majesty, as any the most loyal of His 
Subjects. There was in that case, a 
necessity of chooseing other Judges; 
which might justify the stepping out 
of the common road for that time; but 
it can never be drawn into Precedent 
to countenance the doeing it in ordi- 
nary cases. And then, My Lords, as 
to the few Instances of Commissions 
granted for the tryal of Pyrates and 
Indians, your Lords'ps will easily dis- 
cern, that neither of these Kind of 
Criminals could with any propriety be 
accounted Inhabitants of that Colony, 
and consequently were not entitled to 
the benefit of the Roial Charter, which 



6o 

was granted in express terms only to 
His Majesty's Subjects, Inhabitants 
within the Colony of Virginia. But 
whether even these Courts of Oyer 
and Terminer were consistent with the 
laws of that Country, I must submit 
to your Lords'ps. If they were not, 
'tis certain that the violation of any 
law in times past, can't excuse the 
Transgressing of it now. But suppos- 
ing the best, that these Commissions 
were not contrary to law; yet such 
extraordinary cases can never be set 
up as Precedent to justify the joining 
other persons with the Council in a 
Regular Court, that by His Majestys- 
Instructions, is to have its returns 
twice every year, and which taketh 
cognizance of Breaches of the Peace, 
as well as of picas that concern life 
and member. 

Upon the whole matter, in regard 
that this step of the Lieut.-Governour 



6i 

has been made, contrary to the Ex- 
press terms of the Royal Charter, in 
violation of the laws of that Colony, 
and against a constant usage, founded 
on reason and justice, and since such 
fatal Inconveniences may attend the 
Governour's being invested with so 
absolute power, from which no advan- 
tage can accrue to His Majesty's, I 
make no doubt, but your Lords'ps 
will please to give such directions, as 
may put a stop to this Innovation and 
prevent its being drawn into precedent 
for the future, lest that which was gra- 
ciously intended by His Majesty for a 
privilege and advantage to the good 
Inhabitants of that Colony, may be 
turned to their apparent danger and 
oppression. 

End. 



LIBRftRY OF CONGRESS 




